Your Guide to the Affidavit in Support of Claim for Custody or Access

If you are seeking custody of or access to your children, you will need to fill out an Affidavit in Support of Claim for Custody or Access (Form 35.1). In it, you will answer some personal questions about your family situation and tell the court about your parenting plan.

Custody

“Custody” means the legal ability and responsibility to make major decisions for a child’s care and upbringing. There are different types of custody, which include:

  • Sole Custody: Where one person has the responsibility and authority to make major decisions about the child(ren)’s care and how they will be raised.
  • Joint Custody: Where two people share the responsibility for making decisions for the child(ren). It does not necessarily mean that a child will spend equal time with both parents.
  • Shared Custody: Where both parents share the responsibility for making decisions and caring for the child(ren). Under the Child Support Guidelines, shared custody is where a child lives at least 40% of the time with each parent.

Split Custody: Where parents have more than one child together and each parent has one or more child living primarily with them.

Access

If a child lives with one parent, the other parent usually has a right to have contact (i.e., visitation or access). In most cases, the parent who does not have custody spends time with the child. If there are safety concerns, a parent may not be allowed to have contact with the child or the access may be supervised or restricted in some way.

A person who has access to a child also has the right to receive information about the child’s health, education and general situation.

Swearing or Affirming

The affidavit must be sworn or affirmed that the information is true before a commissioner for taking affidavits or a notary public. It is a criminal offence to swear a false or misleading affidavit and it is your responsibility to make sure that the information is true. 

Up until recently, sworn statements were required to be signed and witnessed in-person. The Ontario Ministry of the Attorney General is now permitting lawyers and notaries to virtually witness the physical signing of sworn statements. Once the affidavit is complete, you can book an appointment online to notarize the form using our virtual witnessing service.

Additional Resources

The Ministry of the Attorney General has provided a guide on completing Form 35.1 (see Ministry of the Attorney General: Asking for a Custody or Access Order). It may be used by anyone but is intended particularly for people who do not have a lawyer. If you have questions or need advice about your situation, you should consult with a lawyer. Notary Pro Canada is not a law firm and cannot provide legal advice.

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